A significant holding

Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a ‘simple disorder,’ under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an ‘offense necessarily included’ under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court’s previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

In its discussion CAAF cites to United States v. Wilcox, 66 M.J. 442, 448 (C.A.A.F. 2008) (noting that “[t]o satisfy the due process requirements of the Fifth Amendment, the Government must prove beyond a reasonable doubt every element of the charged offense” (citing In re Winship, 397 U.S. at 364)). Wilcox and Miller together reaffirm for me that whenever the prosecution seeks to convict on an Article 134, UCMJ, prong 1 or 2, they must actually introduce evidence to show that the conduct is directly prejudicial to good order and discipline or service discrediting.

One of CAAFLog’s commentators predicts more “kitchen sinks charges,” as a result of Miller. That may well be true. So in that vein the prosecution should be ready to prove the SD/GoD elements with evidence. The General Article is not such a catchall as to make every irregular, mischievous, or improper act a court-martial offense. Rather, as the Court stated in United States v Holiday, 4 U.S.C.M.A. 454, 456, 16 C.M.R. 28 (1954):

“[T]he Article contemplates only the punishment of that type of misconduct which is directly and palpably — as distinguished from indirectly and remotely — prejudicial to good order and discipline.”

See also United States v. Sadinsky, 34 C.M.R. 343, 345 (C.M.A. 1964).

The military judge’s benchbook has language that should be instructed on. See Note 2, MJB, page 583. In essence, the prosecution is required to prove something more than “bald assertions, unsupported by reasoning or particular facts showing the manner in which these charged offenses embarrassed the command or undermined its morale.” Cf., United States v. Littlewood, 53 M.J. 349, 353 (C.A.A.F. 2000). That’s what the prosecution did in Littlewood, and that’s what they should be required to do in every contested case with a 134 1/2 charge.